The High Court has ruled in the case of RTM v Bonne Terre Ltd and Another EWHC 111 (KB).
The claimant RTM described himself as a recovering online gambling addict. He was a private individual with no national profile. He was anonymised in the litigation because of the risk that the privacy interests he was seeking to protect could not otherwise be fully and fairly adjudicated upon without encroaching on them.
The defendants operate under the Sky Betting and Gaming (SBG) brand of online gambling platforms. The first defendant provides paid-for betting and gaming products, and the second defendant free-to-play games.
RTM used to gamble online and said it was compulsive, out of control and destructive. He said that although he did not gamble exclusively with SBG, it was his preferred and predominant online platform at the time, and he used several of its products.
He brought a privacy claim in data protection and the misuse of private information. He says SBG gathered and used extensive information, generated by his use of its platforms, unlawfully, including by analysing and combining it through sophisticated profiling algorithms, and especially by way of personalised and targeted marketing which he could not handle, and which fed his compulsive behaviour. He sought compensation for harm, distress and loss.
SBG argued that it complied with all its legal obligations throughout and, in particular, that much of what RTM said he objected to, he consented to at the time.
The court considered the case in the context of the Gambling Act 2005, the Data Protection Act 1998, the General Data Protection Regulation (GDPR), and the Privacy and Electronic Communications Regulations 2003 (PECR). In particular, the court examined the statutory principles governing the processing of personal data, particularly the requirements for lawful processing, consent, and the protection of vulnerable individuals.
The judge said that the relevant legislation and authorities, both European and domestic, indicated that to provide a lawful basis for direct marketing, and for the underlying use of cookies for that purpose, a data subject’s consenting behaviour has to be of a ‘relatively high’ quality. That involves individual qualities such as ‘free’, ‘active’, ‘informed’, ‘unambiguous’, and ‘specific’ or ‘distinct’. What that means in practice is highly context-specific.
The judge pointed out that the measures required to obtain and evidence consent could fall short in the context of problem gambling as “it will be consenting behaviour which is too overborne, passive, unfocused and ambiguous, and too bound up with the craving or compulsion to access gambling, to which the consenting is experienced as a condition to be overcome, to meet the necessary legal standard.”
The court accepted RTM’s evidence about the nature and extent of his decision-making, and looked at all the evidence of the nature and context of his consenting behaviour towards SBG. It found that he lacked subjective consent. The judge was also satisfied that the autonomous quality of his consenting behaviour was impaired to a real degree. In particular, his consent was insufficiently freely given because the circumstances of his consenting behaviour are not recognisable as amounting to free, unambiguous, informed, specific, or distinct from the uncontrolled craving to gamble. Standards of consent set in data protection law are not insensitive to that sort of context.
Consequently, the judge held that SBG’s use of cookies for the purposes of personalised direct marketing to RTM and SBG’s direct marketing to RTM were not lawful processing.
The judge said that the profiling was parasitic on the obtaining of the data and the ultimate delivery of the marketing, and had no other standalone purpose; it necessarily disclosed no distinct basis for lawful processing. SBG had no legitimate interest in profiling for personalised marketing to problem gamblers without their consent. In addition, the judge was unpersuaded that, on the facts of this case, the claim for misuse of private information was sufficiently likely to add anything material to the analysis to make it proportionate to analyse it in any detail.
